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As members of Congress and advocacy groups on Friday condemned President Donald Trump's "when the looting starts, the shooting starts" threat against Minneapolis protesters as morally repugnant, legal experts also warned that law enforcement officials or military personnel carrying out such an order from the president would be in violation of the Fourth Amendment of the U.S. Constitution.

"Trump doesn't care at all about the Constitution, of course, especially when he's trying to scare voters," tweeted Orin Kerr, a law professor at the University of California, Berkeley. "But actually following a policy of 'when the looting starts, the shooting starts' would violate the Fourth Amendment, for starters."

Kerr pointed to Tennessee v. Garner, a 1985 case in which the Supreme Court ruled that the use of deadly force by law enforcement "to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable."

"Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so," the high court's ruling states.

Trump doesn't care at all about the Constitution, of course, especially when he's trying to scare voters. But actually following a policy of "when the looting starts, the shooting starts" would violate the 4th Amendment, for starters. See Tennessee v. Garner, 471 U.S. 1 (1985). https://t.co/BRWSUn8CaK pic.twitter.com/GA6dAnHwm7

Orin Kerr (@OrinKerr) May 29, 2020

I imagine Trump at his phone trying to decide whether to advocate violating the First Amendment (punishing social media for its speech) or the Fourth Amendment (shooting looters).

But then he chooses both, of course.

Orin Kerr (@OrinKerr) May 29, 2020

In a tweet early Friday morning as nationwide protests against the police killing of George Floyd intensified for the fourth straight day, Trump called Minneapolis demonstrators "thugs" and said he is prepared to send in the U.S. military to occupy the city with a green light to open fire on those who damage property and steal goods.

"Any difficulty and we will assume control but, when the looting starts, the shooting starts," Trump tweeted. "Thank you!"

Twitter posted a content warning over the tweet and said the president's message violated the platform's rules against "glorifying violence."

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As HuffPost's Sara Boboltz pointed out, Trump "did not coin the phrase 'when the looting starts, the shooting starts.' The line is half a century old, and combative Miami Police Chief Walter Headley Jr. originally used it during the height of civil rights protests in the 1960s."

"Headley led the Florida city's law enforcement from 1948 until his sudden death in 1968," Boboltz noted. "He attracted national attention and condemnation in December 1967, when he threatened to step up already severe policing practices that included use of tear gas and an aggressive stop-and-frisk policy."

George Wallace, the racist former governor of Alabama, also used the phrase during his 1968 presidential bid.

Former U.S. Attorney Barbara McQuade, an NBC News legal analyst, said "Trump's tweet threatening 'shooting' in Minneapolis is disgusting and repulsive to our system of laws."

"Every American should denounce this threat to use unconstitutional deadly force," McQuade tweeted.

Sen. Elizabeth Warren (D-Mass.) condemned the president's threat as a call "for violence against Black Americans."

"His advocacy of illegal, state-sponsored killing is horrific," tweeted Warren. "Politicians who refuse to condemn it share responsibility for the consequences."

Donald Trump is calling for violence against Black Americans. His advocacy of illegal, state-sponsored killing is horrific. Politicians who refuse to condemn it share responsibility for the consequences.

Elizabeth Warren (@ewarren) May 29, 2020

In a statement on Friday, Jeffery Robinson, director of the ACLU's Trone Center for Justice and Equality, urged the hundreds of National Guard members who have been activated in Minneapolis as well as the city's police force to "comply with the law and not President Trump."

"President Trump has told police officers in New York that they should feel free to use violence against 'thugs being thrown into the back of a paddy wagon,'" Robinson said. "He did not hesitate to claim to a foreign leader that there is no racial problem in America. The president's latest suggestion that law enforcement or the military should literally murder protesters is, unfortunately, no longer shocking."

"Trump's response ignores the fact that the inherent problem is not the reaction to Mr. Floyd's murder," Robinson added. "The problem is Mr. Floyd's murder."

Read the rest here:
Carrying Out Trump's "When the Looting Starts, the Shooting Starts" Order Would Violate 4th Amendment, Warn Legal Experts - Common Dreams

As the legal scholar Orin Kerr noted, Actually following a policy of when the looting starts, the shooting starts would violate the 4th Amendment, for starters. He cited the precedent in Tennessee v. Garner.

Evelyn Douek: Trump is a problem Twitter cannot fix

That case originated in Memphis, where two police officers, including Elton Hymon, were dispatched to catch a prowler. In the backyard of a house, Hymon saw a suspect he judged to be 17 or 18 run to a back fence. Halt, he said, police. The suspect tried to climb over the fence to escape. Hymon shot him in the back of the head and recovered a purse with $10 in it. He later cited a Tennessee statute that said, If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.

The Supreme Courts holding in the 1985 case sets forth a different standard:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

That is the law of the land.

The decision goes on to note that:

where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

More succinctly: Cops cant just shoot someone looting gadgets from a Target or whiskey from a liquor store.

Trump swore to protect and defend the Constitution. He just violated that oath. When he wrote when the looting starts, the shooting starts, he implicitly urged law enforcement to adopt an approach that would transgress the Constitution, violate Fourth Amendment rights, and cause unlawful deaths. Rioting is abhorrent. Trumps incendiary call for illegal acts is more likely to fuel than stop itespecially if any police act on his irresponsible words.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

More:
Trumps Looting Tweet Violates His Oath of Office - The Atlantic

Last week,Gov. Jared Polis activated the Colorado National Guard and Denvers Mayor Hancock employed curfews.After two months of COVID-19-related stay-at-home orders, Denver went back into lockdown.These moves were triggered by violence in Denver, part of nationwide unrest spreading from George Floyds death caused after a Minneapolis police officer held his knee on the mans neck as he cried that he could not breathe.

Currently, Colorados National Guard reports to the governor, deployed in a law enforcement function, and isunarmed, carrying only defensive weapons.However, over the weekend, President Trump inserted himself into the National Guard discussion bytweeting:just spoke to [the Governor of Minnesota] and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts the shooting starts . . .Then on Monday afternoon during a teleconference with governors, Trump reportedly stated: I wish we had an occupying force.After the teleconference, President Trump speaking from the Rose Garden declared if governors were unable to end the violence, he would send in the military to do the job for them.

Are Americans ready for federal troops regardless of which party controls Washington to occupy our cities and use force on our citizens to quell disorder?After months of state and local governments utilizing expanded authorities to essentially quarantine their citizens in response to COVID-19, the latest crisis begs the questions: 1) does the president have the authority to order a military response to domestic unrest, and 2) what are the militarys rules for use of force domestically can the military use deadly force in response to looting?

Does the president have authority to use military force domestically?Yes, but it rarely has been utilized in U.S. history and is subject to both the Posse Comitatus Act and the Insurrection Act.While the president is the commander-in-chief of the armed forces, this authority is constrained by Congress and the courts by the separation-of-powers doctrine established by the U.S. Constitution.

Congress limited the presidents authority to use active-duty military forces (so called Title 10 forces) for domestic law enforcement purposes in the Posse Comitatus Act by making it unlawful for the military to execute the laws . . . except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.Thus, the president must point to a Posse Comitatus Act exception before deploying federal military forces or federalizing a states National Guard to respond to domestic unrest.

One such Posse Comitatus exception is the Insurrection Act, which authorizes federalizing the National Guard or ordering active-duty forces to put down civil disturbances subject to three key conditions.First, after receiving a request for assistance from a governor or state legislature to suppress [an] Insurrection pursuant to10 U.S.C.251.This provision was last invoked 28 years ago during the Los Angeles riots.While current unrest is a rapidly developing situation, it is unclear whether any governor or state legislature will make such a request.The next two provisions allow a president to act absent a request from a governor or state legislature.First, when the president finds it necessary to suppress an insurrection, domestic violence, unlawful combination or conspiracy.Second, the president may use military force when unrest impedesfederal or state law.But, no president has federalized National Guard forces or utilized active-duty forces domestically absent a request from a governor or state legislature since Presidents Eisenhower and Kennedy used these provisions to enforce civil-rights laws in the 1950s and 1960s.This includes past unrest in Ferguson, Baltimore or after Hurricane Katrina.Ultimately, presidents rarely invoke the Insurrection Act, limited to extraordinary circumstances.

If active-duty forces or federalized National Guard units are deployed into American cities, are troops authorized to use force on looters?Not likely.The military utilizes Standing Rules for Use of Force (SRUF), not Standing Rules of Engagement (SROE), when responding to civil unrest.SROE govern military operations where either law enforcement and civil authorities are nonexistent or resistant to U.S. military presence (e.g., combat).SRUF, conversely, govern law enforcement and self-defense missions allowing for domestic legal considerations such as search, seizure, arrest and detention.Clearly, constitutional standards such as the Fourth Amendment apply during unrest on U.S. soil, and any government actions violating constitutional protections could jeopardize criminal prosecutions.SRUF restricts force to be used only as a last resort and minimized as much as possible.To be sure, deadly force is only utilized after all lesser means have failed or cannot be reasonably employed.Lastly, SRUF imposes a reasonable requirement requiring force used to be reasonable in intensity, duration and magnitude to counter the treat.

While SRUF limits force to self-defense or protecting specific assets, such as national security assets or national critical infrastructure, shooting looters clearly violates the governing rules for the use of force on U.S. soil.

Toren Mushovic, a health care attorney and chief operating and compliance officer ofIMMUNOe Health & Research Centers in Centennial, also serves as a judge advocate for the United States Navy Reserves.The views expressed here are the authors personal views and do not necessarily reflect those of the Department of Defense, the United States Navy, or any other department or agency of the United States Government.

Original post:
Can the president really send in the troops? | Opinion - coloradopolitics.com

The doctrine of qualified immunity too often gives police miscreants a free pass

May 29th 2020

ON MAY 25TH police officers in Minneapolis responded to a shop assistants complaint about someone passing a counterfeit bill. They arrested George Floyd, a 46-year-old black man, but instead of putting him in the back of a squad car, an officer pressed his knee to Mr Floyds neck for nearly nine minutes. Mr Floyd complained that he could not breathe, called out for his late mother and eventually stopped moving.

Mobile-phone footage of Mr Floyds death emerged one day later, and for the ensuing four days, violent protests have wracked Minneapolis. Derek Chauvin, the officer who held Mr Floyd on the ground, was arrested on the afternoon of May 29th and charged with third-degree murder and manslaughter, and may face further charges for what certainly looks like excessive and unjustified force.

That makes him an outlier: police rarely face criminal charges for actions that might land an ordinary person in the dock. The protesters and rioters on the streets of Minneapolis see this as part of a pattern of institutional racism, in which black victims of police malpractice rarely achieve justice. As a matter of course, prosecutors work closely with police, and are often reluctant to bring charges against them. That leaves civil actions as the only form of redress available. But police enjoy a degree of legal protection from lawsuits, courtesy of a doctrine known as qualified immunity.

Federal law gives Americans the right to sue government officials who violate their constitutional rights. But in Pierson v Ray, decided in 1967, the Supreme Court held that public officials who commit good faith rights violations are entitled to qualified immunity, intended to shield them against frivolous lawsuits.

In practice, as the Supreme Court explained in 2015, that means that government employees cannot be sued for actions undertaken in the course of their duties, so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. That sounds sensible enoughbut over time the clearly established part of the doctrine has almost completely subsumed the reasonable person part.

For instance, on September 10th 2013 police officers in Fresno, California searched the homes and business of two men suspected of running an illegal gambling operation. The men allege that police seized $151,380 in cash and another $125,000 worth of rare coinsbut only reported taking $50,000, and pocketed the rest. The men sued, but the Ninth Circuit Court of Appeals dismissed the case.

The court held that it need not determine whether the mens constitutional rights had been violatedie, in this case whether the officers actually had stolen the property in question, which would have breached the Fourth Amendment, which promises protection against unreasonable searches and seizures. Because there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant, the two men were not entitled to relief (though the court noted, near the end of its brief ruling, we sympathise with the Appellants).

Or consider the case of Malaika Brooks, who was seven months pregnant, and whom police dragged from her car in front of her 11-year-old son, and tasered three times in less than a minutebecause she declined to sign a traffic ticket. A panel of federal judges ruled that even though Ms Brookss violationdriving 12mph (19km/h) over the speed limitwas not serious, and she did not pose even a potential threat to anyones safety, the officers actions did not violate clearly established law. Small wonder that Sonia Sotomayor, the Supreme Courts most ardent Fourth Amendment champion, called qualified immunity, as most courts have come to interpret it, an absolute shield for law-enforcement officers, gutting the deterrent effect of the Fourth Amendment.

Qualified immunity is hardly the only reason why police officers rarely face criminal penalties for actions such as stealing cash and coins, or repeatedly tasering a pregnant womanactions that an ordinary citizen would almost certainly have to answer for in court. Criminal cases have to be prosecuted; prosecutors work closely with police; police tend to close ranks around their own; and a prosecutor who made enemies of his city or countys police force would find it hard to do his job.

Police unions tend to back their brother officers. In 2014 the union in New York staunchly supported an officer caught on video choking an African-American man to death for allegedly selling single cigarettes on a street corner (sacking that officer took five years). That makes recent statements from multiple police unions expressing outrage at what happened to Mr Floyd all the more extraordinary.

The Supreme Court is currently considering whether to hear several cases concerning qualified immunity and its excesses. A diverse range of supportersnot just the usual suspects, such as the American Civil Liberties Union and the libertarian Cato Institute, but also conservative Christian groups, such as the Alliance Defending Freedomis urging the justices to take another look at the doctrine. Effective policing requires community support, and police officers who place themselves above the law will never get it.

Editors note (June 1st 2020): This article was amended to make clearer that qualified immunity protects police from civil actions, not criminal charges.

Read the original here:
Why the prosecution of a Minneapolis police officer is such a rarity - The Economist

What does qualified immunity look like?

In practice, qualified immunity makes it difficult for people to bring suits against police officers, to say nothing of winning them. Consider the case of Malaika Brooks:

In 2004, Ms. Brooks, a black woman who was seven months pregnant, was pulled over by the Seattle police for speeding while driving her 11-year-old son to school.

Ms. Brooks believed she had been wrongly stopped and refused to sign the ticket, thinking, mistakenly, that her signature would be an admission of guilt.

The officers then threatened to throw her in jail, twisted her arm behind her back and tased her three times first on her thigh, then in an arm and then in her neck before dragging her into the street, laying her face down and cuffing her.

Ms. Brooks sued the officers, and in 2011 a federal appeals court argued that a reasonable person could conclude that the officers had indeed violated her constitutional rights. But those same judges dismissed her case, arguing that no precedent had clearly established that tasing a woman in Ms. Brookss circumstances was unconstitutional at the time.

Ms. Brookss story is far from unique: An investigation by Reuters found that in the past 15 years, the courts have shown an increasing tendency to grant police officers immunity in excessive-force cases. The Supreme Court, for example, has denied immunity only twice in its 30 most recent relevant cases, according to George Will.

[Read the investigation: For cops who kill, special Supreme Court protection]

People all across the political spectrum, actually. Justice Sotomayor is arguably the Supreme Courts most left-leaning member, but her concern about police impunity is shared by one of the courts most conservative members, Justice Clarence Thomas.

From the right: In The Wall Street Journal, Robert McNamara, a member of the Federalist Society, raises the case of Shaniz West, an Idaho woman who gave her house keys to the police to search for her ex-boyfriend, who was wanted on firearms charges. He wasnt inside, but the police bombarded the house with grenades and shotguns until it was uninhabitable, leaving Ms. West homeless. Ms. West sued the officers for violating her Fourth Amendment rights, but her claim was rejected because of qualified immunity.

Nobody seriously believes that consent to enter a home is permission to lob grenades into it. But no court has ever decided the question, because as far as I can tell, this is the first time anybody has made the argument, Mr. McNamara writes. Since no court has considered it, qualified immunity means Ms. West loses. As long as an officials conduct is uniquely outrageous, its impossible to hold him liable for it.

From the left: In the New Republic, Matt Ford notes the case of three California police officers who were accused of seizing more than $275,000 in rare coins from a persons house while reporting that they had seized only $50,000. The federal Court of Appeals for the Ninth Circuit said the alleged theft of $225,000 was deeply disturbing, but it dismissed the suit anyway because it said no precedent had ever established that officers cant steal on the job.

See the rest here:
The One Police Reform That Both the Left and the Right Support - The New York Times